ICC to Investigate War Crimes in Gaza?

On July 23, Navi Pillay, the U.N.’s High Commissioner for Human Rights, suggested that attacks on civilians by both Israel and Hamas may have violated international law “in a manner that could amount to war crimes.” Senior British lawyers have written to the International Criminal Court (ICC) in The Hague, urging it to investigate "crimes" committed in Gaza, including the destruction of homes, hospitals and schools. The lawyers say that it is within the ICC's jurisdiction to act because the government of Palestine made a declaration in 2009 accepting the court's role and the UN has since acknowledged Palestine as a non-member observer state.

The Israeli army has been accused of targeting civilian areas, as well as using flechette shells during its offensive Operation Protective Edge in Gaza, which can cause widespread harm and death to civilians. The International Committee of the Red Cross issued a statement condemning the shelling in the strongest terms. A United Nations school, which is helping to shelter displaced Palestinians in the center of Gaza, also came under attack from Israeli fire on Tuesday, causing disproportionate civilian casualties. According to the Geneva Conventions 1949 the parties waging war are under an obligation to protect the civilian population and avoid unnecessary casualties. Using more sophisticated military technology the Israeli army should be more equipped to do that than the militant groups of Palestinians, including Hamas.

Abraham Bell, Professor of Law at Bar-Ilan University in Israel stated that Hamas has committed war crimes as a matter of systematic [authorized] policy". “Hamas has used child soldiers, human shields, indiscriminate firing and weaponry incapable of discriminate firing during the conflict".

For prosecution to actually go ahead, the domestic country must first have investigated its own conduct. Israel’s analysis of its own actions during war has never been carried out with sufficient rigor or impartiality. Cooperation from Israel with an international investigation of Operation Protective Edge will be doubtful, regarding past experiences with the Goldstone report after Operation Cast Lead in Gaza about six years ago. As far as the Palestinians are concerned, two NGOs in Gaza – al-Mezan and the Palestinian Center for Human Rights – will be impartially collecting evidence of war crimes along with the United Nations. Will the NGOs also report on any crimes committed by Hamas? It goes without saying that a terrorist organization like Hamas is not going to investigate its own war crimes.

The ICC has jurisdiction over crimes committed in a particular territory only if jurisdiction is granted by the state in whose territory the crimes occurred or by the UN. A state can confer jurisdiction on the court either by becoming a party to the Rome statute or by making a one-off declaration. Israel refused to ratify the Rome Statute, in 1998, but Palestine had indeed made a declaration. But was Palestine a state at that moment? At the time of Moreno-Ocampo's decision, it was merely an observer at the UN general assembly. So, in the prosecutor's view, Palestine's declaration had no effect.

Palestine needs to lodge a new declaration. The Palestinian foreign minister, Riad al-Malki, went to see ICC's chief prosecutor, Fatou Bensouda, on Tuesday. Was he in The Hague to lodge a new declaration on behalf of his government? Sadly not. He simply asked for clarification on how a state can accept the jurisdiction of the ICC.

So where does that leave Palestine? It is not a state party to the Rome statute, the ICC said. The court has not "received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the prosecutor to open an investigation into any alleged crimes" following the United Nations General Assembly Resolution (67/19) on 29 November 2012 granting it non-member observer state status. Therefore, Bensouda said, "the ICC has no jurisdiction over alleged crimes committed on the territory of Palestine".

To prosecute alleged war crimes, the United Nations Security Council has the authority to request an ICC investigation: the U.S., Israel’s strongest ally and a permanent member of the Security Council, would veto any attempt to take Israeli officials to the ICC.

Another somewhat unlikely option is that prosecution of Israel or Hamas could still happen in one of those 166 independent countries that have universal jurisdiction to prosecute individuals for war crimes, defined as crimes in their national criminal law. An actual prosecution of alleged war crimes in Gaza depends on the political will and power to do so. No doubt it would have considerable international ramifications.

Accusations for alleged war crimes in Gaza are easily made, prosecutions based on convincing evidence are a different story. It might even paralyze a fragile peace process, if there is any at all.

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